[Federal Register Volume 61, Number 216 (Wednesday, November 6, 1996)]
[Proposed Rules]
[Pages 57343-57356]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-28543]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[VA 056-5015; FRL-5647-5]
Approval and Promulgation of Air Quality Implementation Plans;
Virginia; Enhanced Motor Vehicle Inspection and Maintenance Program
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed interim rule.
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SUMMARY: EPA is proposing conditional, interim approval of a State
Implementation Plan (SIP) revision submitted by the Commonwealth of
Virginia. This revision establishes and requires the implementation of
an enhanced inspection and maintenance (I/M) program in the following
Northern Virginia localities: the Counties of Arlington, Fairfax,
Fauquier, Loudoun, Prince William, and Stafford, and the Cities of
Alexandria, Fairfax, Falls Church, Manassas, and Manassas Park.
The intended effect of this action is to propose conditional
interim approval of the enhanced I/M program proposed by Virginia for
the Northern Virginia program area, based upon the Commonwealth's good
faith estimate that the proposed test-and-repair network design is
appropriate and will achieve the expected emissions reductions and that
the revision is otherwise in compliance with the Clean Air Act (CAA).
EPA is proposing conditional approval because the Commonwealth's SIP
revision is deficient with respect to certain requirements of the CAA
and/or EPA's I/M program regulatory requirements.
DATES: Comments must be received on or before December 6, 1996.
ADDRESSES: Comments may be mailed to David L. Arnold, Chief, Ozone/CO
and Mobile Sources Section, Mail code 3AT21, U.S. Environmental
Protection Agency, Region III, 841 Chestnut Building, Philadelphia,
Pennsylvania 19107. Copies of the documents relevant to this action are
available for public inspection during normal business hours at the
Air, Radiation, and Toxics
[[Page 57344]]
Division, U.S. Environmental Protection Agency, Region III, 841
Chestnut Building, Philadelphia, Pennsylvania 19107; and at the
Virginia Department of Environmental Quality, 629 East Main Street,
Richmond, Virginia 23219.
FOR FURTHER INFORMATION CONTACT: Brian Rehn, (215) 566-2176, at the EPA
Region III address above or via e-mail at Rehn.Brian@epmail.epa.gov.
While information may be requested via e-mail, comments must be
submitted in writing to the EPA Region III address indicated in the
Addresses section.
SUPPLEMENTARY INFORMATION:
I. Background
A. Impact of the National Highway System Designation Act on the Design
and Implementation of Enhanced Inspection and Maintenance Programs
under the Clean Air Act
The National Highway System Designation Act of 1995 (NHSDA)
establishes two key changes to the enhanced I/M rule requirements
previously developed by EPA. Under the NHSDA, EPA cannot require states
to adopt or implement centralized, test-only IM240 enhanced vehicle
inspection and maintenance programs as a means of compliance with
section 182, 184 or 187 of the CAA. Also under the NHSDA, EPA cannot
disapprove a state SIP revision, nor apply an automatic discount to a
state SIP revision under section 182, 184 or 187 of the CAA, because
the I/M program in such plan revision is decentralized, or a test-and-
repair program. Accordingly, the so-called ``50% credit discount'' that
was established by the EPA's I/M Program Requirements Final Rule,
(published November 5, 1992, and herein referred to as the I/M rule)
has been effectively replaced with a presumptive equivalency criteria,
which places the emission reductions credits for decentralized networks
on par with credit assumptions for centralized networks, based upon a
state's good faith estimate of reductions as provided by the NHSDA and
explained below in this section.
EPA's I/M rule established many other criteria unrelated to network
design or test type for states to use in designing enhanced I/M
programs. All other elements of the I/M Rule, and the statutory
requirements established in the CAA continue to be required of those
states submitting I/M SIP revisions under the NHSDA, and the NHSDA
specifically requires that these submittals must otherwise comply in
all respects with the I/M Rule and the CAA.
The NHSDA also requires states to swiftly develop, submit, and
begin implementation of these enhanced I/M programs, since the
anticipated start-up dates developed under the CAA and EPA's rules have
already been delayed. In requiring states to submit these plans within
120 days of the NHSDA passage, and in allowing these states to submit
proposed regulations for this plan (which can be finalized and
submitted to EPA during the interim period) it is clear that Congress
intended for states to begin testing vehicles as soon as practicable,
now that the decentralized credit issue has been clarified and directly
addressed by the NHSDA.
Submission criteria described under the NHSDA allows for a state to
submit proposed regulations for this interim program, provided that the
state has all of the statutory authority necessary to carry out the
program. Also, in proposing the interim credits for this program,
states are required to make good faith estimates regarding the
performance of their enhanced I/M program. Since these estimates are
expected to be difficult to quantify, the state need only provide that
the proposed credits claimed for the submission have a basis in fact. A
good faith estimate of a state's program may be an estimate that is
based on any of the following: the performance of any previous I/M
program; the results of remote sensing or other roadside testing
techniques; fleet and vehicle miles traveled (VMT) profiles;
demographic studies; or other evidence which has relevance to the
effectiveness or emissions reducing capabilities of an I/M program.
This action is being taken under the authority of both the NHSDA
and section 110 of the CAA. Section 348 of the NHSDA expressly directs
EPA to issue this interim approval for a period of eighteen months, at
which time the interim program will be evaluated in concert with the
appropriate state agencies and EPA. At that time, the Conference Report
on section 348 of the NHSDA states that it is expected that the
proposed credits claimed by the state in its submittal, and the
emissions reductions demonstrated through the program data may not
match exactly. Therefore, the Conference Report suggests that EPA use
the program data to appropriately adjust these credits on a program
basis as demonstrated by the program data.
Furthermore, EPA believes that in also taking action under section
110 of the CAA, it is appropriate to grant a conditional approval to
this submittal since there are some deficiencies with respect to CAA
statutory and regulatory requirements (identified herein) that EPA
believes can be corrected by the state during the interim period.
Finally, it should also be noted that Virginia has submitted a
separate SIP revision addressing a ``basic'' I/M program requirement
for the Richmond area. EPA is not acting upon that submittal in today's
rulemaking action, and intends to act upon that submittal at a later
date.
B. Interim Approvals Under the NHSDA
The NHSDA directs EPA to grant interim approval for a period of
eighteen months to approvable I/M submittals under this Act. This Act
also directs EPA and the states to review the interim program results
at the end of eighteen months, and to make a determination as to the
effectiveness of the interim program. Following this demonstration, EPA
will adjust any credit claims made by the state in its good faith
effort to reflect the emissions reductions actually measured by the
state during the program evaluation period. The NHSDA is clear that the
interim approval shall last for only eighteen months, and that the
program evaluation is due to EPA by the end of that period. Therefore,
EPA believes Congress intended for these programs to start-up as soon
as possible, which EPA believes should be on or before November 15,
1997, so that at least 6 months of operational program data can be
collected to evaluate the interim program. EPA believes that in setting
such a strict timetable for program evaluations under the NHSDA, that
Congress recognized and attempted to mitigate any further delay with
the start-up of this program. For the purposes of this program,
``start-up'' is defined as a fully operational program which has begun
regular, mandatory inspections and repairs, using the final test
strategy and covering each of a state's required areas. EPA proposes
that if the state fails to start its program on this schedule, the
approval granted under the provisions of the NHSDA will convert to a
disapproval after a finding letter is sent to the state.
The program evaluation to be used by the state during the 18-month
interim period must be acceptable to EPA. EPA anticipates that such a
program evaluation process will be developed by the Environmental
Council of States (ECOS) group that is convening now and that was
organized for this purpose. EPA further anticipates that in addition to
the interim, short term evaluation, the state will conduct a long term,
ongoing evaluation of the I/M program as required by the I/M Rule in
Secs. 51.353 and 51.366.
[[Page 57345]]
C. Process for Full Approvals of This Program Under the CAA
As per the NHSDA requirements, this interim rulemaking will expire
within eighteen months of the final interim approval, or the date of
final approval. A full approval of the state's final I/M SIP revision
(which will include the state's program evaluation and final adopted
state regulations) is still necessary under section 110 and under
section 182, 184 or 187 of the CAA. After EPA reviews the
Commonwealth's submitted program evaluation, final rulemaking on the
state's SIP revision will occur.
II. EPA's Analysis of Virginia's Submittal
On March 27, 1996, the Virginia Department of Environmental Quality
(DEQ) submitted a revision to its State Implementation Plan (SIP) for
an enhanced I/M program to qualify under the NHSDA. That revision
consists of enabling legislation that will allow the state to implement
the I/M program, proposed regulations, a description of the I/M program
(including a modeling analysis and detailed description of program
features), and a good faith estimate that includes the state's basis in
fact for emission reductions claims of the program. The state's credit
assumptions are based upon the removal of the 50% credit discount for
all portions of the program that are based on a test-and-repair
network, and the application of the state's own estimate of the
effectiveness of its decentralized test and repair program.
A. Analysis of the NHA submittal criteria
Transmittal Letter
On March 27, 1996, Virginia submitted an enhanced I/M SIP revision
to EPA, requesting approval action under the NHSDA of 1995 and the CAA
of 1990. The official submittal was made by the appropriate state
official, Peter W. Schmidt, Director of the Department of Environmental
Quality, and was addressed to the appropriate EPA official in the
Region.
Enabling Legislation
The Commonwealth of Virginia has enabling legislation at the Motor
Vehicle Emissions Control Law at Title 46.2, Subtitle III, Chapter 10,
Article 22 of the Code of Virginia. This legislation provides for the
implementation of a decentralized, test-and-repair program network
utilizing ASM 5015 testing equipment, with testing on a biennial basis.
Proposed Regulations
Prior to submitting its March 27, 1996 submittal, the Commonwealth
of Virginia proposed regulations before its Air Pollution Control Board
in accordance with 40 CFR Part 51, establishing an enhanced I/M
program. The Commonwealth anticipates fully adopting regulations by
October 30, 1996.
Program Description
The Commonwealth's proposed enhanced I/M program applies to the
Northern Virginia metropolitan area, and includes biennial testing of
1968 and newer gasoline powered light-duty vehicles (LDGV) and light-
duty trucks (LDGT) up to 10,000 pounds gross vehicle weight rating
(GVWR) in a fully test-and-repair network. Test methods are to include
a two-mode acceleration simulation mode (ASM) exhaust emissions test as
the primary test method for newer-technology (i.e. 1981 and newer)
LDGVs. Two-speed idle testing will be performed on: LDGTs, older
technology (i.e. pre-1981) LDGVs, and on any LDGV equipped with full-
time four wheel drive or full-time anti-lock brake systems.
Additionally, evaporative system testing is to be performed, including
an evaporative system pressure test for 1973 and newer vehicles, and an
evaporative system purge test (for 1981 and newer vehicles which
receive ASM testing). On 1973 and newer vehicles, a visual inspection
for the presence of certain emissions control components or systems
will eventually be performed. The following systems will be checked:
the air injection system, catalytic converter system, fuel evaporative
emissions control system, positive crankcase ventilation (PCV) system,
exhaust gas recirculation (EGR) system, and the thermostatic air
cleaner system. Finally, a fuel filler cap check for 1973 and newer
vehicles is included. Motorists will be required to pass all aspects of
emissions testing prior to re-registering their vehicles. On-road
testing will be used to ensure that motorists comply with testing
requirements and that vehicle emissions remain below pollution
standards between biennial tests.
Emission Reduction Claim and Basis for the Claim
As Virginia stated in the March 27, 1996 SIP submittal, the
Commonwealth is claiming additional I/M program effectiveness for their
test-and-repair network, when compared to EPA's assumed credit discount
for this type of testing network. Virginia claims that its test-and-
repair network will be 93.8% as effective as an equivalent test-only
network, in terms of hydrocarbon and oxides of nitrogen pollutant
reductions. Per the recently enacted National Highway Systems
Designation Act, the Commonwealth has 18 months from the date of EPA
final interim approval of the March 27, 1996 SIP revision to obtain the
data on operation of its program in order to prove its effectiveness
claims.
The Commonwealth's good faith estimate achieves credit through the
following measures, which are part of the March 27, 1996 SIP submittal:
1. A program effectiveness demonstration of the existing Northern
Virginia I/M program, compiled in conjunction with EPA, entitled
``Study to Demonstrate Increased Emissions Reduction Credit for the
Northern Virginia Test-and-Repair Program'', dated December 21, 1995;
2. A more stringent on-road testing program than required by
federal requirements, through remote sensing and a civil penalty system
for noncompliance;
3. Implementation of a technician training and certification
program and a repair facility certification program; and
4. Improved data entry automation, including bar code readers at
test stations to read bar-coded registration forms to eliminate data
entry errors.
B. Analysis of the EPA I/M Regulation and CAA requirements
As previously stated, the NHSDA left those elements of the I/M rule
that do not pertain to network design or test type intact. Based upon
EPA's review of Virginia's submittal, EPA believes the Commonwealth has
not complied with all aspects of the NHSDA, the CAA and the I/M rule.
For those sections of the I/M rule, or of the CAA, identified below,
with which the state has not yet fully complied, EPA proposes to
conditionally approve the SIP upon receipt of a commitment from the
state to correct each said deficiency. Before EPA can continue with the
interim rulemaking process, the Commonwealth must make a commitment
within 30 days of November 6, 1996 to correct these major SIP
element(s) by a date certain within 1 year of EPA interim approval.
The Commonwealth must correct these major deficiencies by the date
specified in the commitment, or this approval will convert to a
disapproval under CAA section 110(k)(4). EPA has also identified
certain minor deficiencies in the SIP, which are itemized below. EPA
has determined that delayed correction of these minor deficiencies will
have a de minimis
[[Page 57346]]
impact on a state's ability to meet clean air goals. Therefore, the
state need not commit to correct these deficiencies in the short term,
and EPA will not impose conditions on interim approval with respect to
these deficiencies. Virginia must correct these deficiencies during the
eighteen month term of the interim approval, as part of the fully
adopted rules that the Commonwealth will submit to support full
approval of its I/M SIP. So long as Virginia corrects these minor
deficiencies prior to final action on the I/M SIP, EPA concludes that
failure to correct these minor deficiencies in the short term will not
adversely affect EPA's ability to give interim approval to the proposed
I/M program.
Applicability--40 CFR 51.350
Sections 182(c)(3) and 184(b)(1)(A) of the Act and 40 CFR 51.350(a)
require states, or portions of states, located in the Ozone Transport
Region (OTR), containing Metropolitan Statistical Areas (MSAs), or
parts thereof, with a population of 100,000 or more (as of 1990) to
implement an enhanced I/M program. The Northern Virginia portion of the
Washington, D.C. MSA is part of the OTR and has a population of 100,000
or more. This area is also classified as a serious ozone nonattainment
area and would therefore be required to implement an enhanced I/M
program, per section 182(c)(3) of the CAA and 40 CFR 51.350(2).
Under the above Clean Air Act requirements, the following
localities in Virginia are subject to the enhanced I/M program
requirements: the Counties of Arlington, Fairfax, Loudoun, Prince
William and Stafford; and the Cities of Alexandria, Fairfax, Falls
Church, Manassas, and Manassas Park. Under the federal I/M rule,
specifically 40 CFR 51.350(b), some rural counties having a population
density of less than 200 persons per square mile based on the 1990
census could be excluded from program coverage provided that at least
50% of the MSA population is included in the program. No counties
within the Northern Virginia MSA qualify for this low population
density exemption, however. The Commonwealth's proposed I/M regulation,
as submitted with the SIP, requires that the enhanced I/M program be
implemented in the localities listed above, and also in Fauquier
County.
Virginia's I/M legislative authority provides the legal authority
to establish the proposed geographic boundaries. The program boundaries
are defined in Virginia's Regulation for the Control of Motor Vehicle
Emissions, located at 9 VAC 5-91-20. That portion of the regulation
defines the ``Northern Virginia Program Area'' to include the counties
identified above. EPA is proposing to find that the geographic
applicability requirements are satisfied. The federal I/M regulation
requires that the state program shall not sunset until it is no longer
necessary. EPA interprets the federal regulation as stating that a SIP
which does not sunset prior to the attainment deadline for each
applicable area satisfies this requirement. The Virginia I/M enabling
legislation and regulation provides for the program to continue past
the attainment dates for all enhanced I/M program areas in the
Commonwealth.
Virginia's SIP satisfies all the requirements related to 40 CFR
51.350 and is therefore approvable.
Enhanced I/M Performance Standard--40 CFR 51.351
The enhanced I/M program must be designed and implemented to meet
or exceed a minimum performance standard, or ``model'' program design,
on the basis of emission levels expressed in area-wide average grams
per mile (gpm) for certain pollutants. The performance standard is
established using local characteristics, such as vehicle mix and local
fuel controls, and the following model I/M program parameters: network
type, start date, test frequency, model year coverage, vehicle type
coverage, exhaust emission test type, emission standards, emission
control device, evaporative system function checks, stringency, waiver
rate, compliance rate and evaluation date. The emission levels achieved
by the state's program design shall be calculated using the most
current version, at the time of submittal, of the EPA mobile source
emission factor model. At the time Virginia submitted its SIP, the most
current version was MOBILE5a. Subject localities shall meet the
performance standard for the pollutants which necessitate the enhanced
I/M requirements. In the case of ozone nonattainment areas, the
performance standard must be met for both oxides of nitrogen (NOX)
and hydrocarbons (HC). Thus, the Commonwealth's submittal must meet the
enhanced I/M performance standard for HC and NOX in all subject I/
M areas in the Northern Virginia area.
In enacting the NHSDA, Congress evidenced an intent to have states
promptly implement I/M programs under interim approval status to gather
the data necessary to support state claims of appropriate credit for
alternative network design systems. By providing that such programs be
submitted within four months of passage of the NHSDA, that EPA could
approve I/M programs on an interim basis, solely upon proposed
regulations, and that such approvals would last only for an 18-month
period, it is clear that Congress anticipated both that these programs
would start quickly and that EPA would act quickly to give them interim
approval.
The Virginia submittal includes the following program design
parameters:
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Parameter Virginia's program
----------------------------------------------------------------------------------------------------------------
Network type.................................................................. Decentralized, test-and-repair,
(privatized).
Start date.................................................................... 1983 (existing program); 1997
(new program elements).
Test frequency................................................................ Biennial (i.e. every two years).
Model year/vehicle type coverage.............................................. 1968 and newer model year
(1968+) vehicles/gasoline-
powered vehicles (up to 10,000
lbs. gross vehicle weight
rating (GVWR)).
Exhaust emissions test type................................................... Acceleration simulation mode
(ASM2)test.
1981+ vehicles:
LDGV, LDGT, HDGT (i.e. under
8,500 lbs. GVWR).
2-speed idle test.
1968-1980 vehicles
(all vehicles).
1968+ heavy-duty
vehicles (8500-10000 lbs.
GVWR).
1981+ vehicles (0-
8500 lbs GVWR), with full-
time four wheel drive.
All vehicles having
full-time traction control or
ABS.
Emission standards (for 1981+ model year vehicles)............................ Acceleration simulation mode
(ASM2) test.
0.8 gpm HC; 15 gpm
CO; 2.0 gpm NOX [equivalent].
2-speed idle test.
220 ppm HC, 1.2 %
CO.
[[Page 57347]]
Emission control device visual inspection..................................... Air pump, catalyst, EGR system,
evaporative emissions control
system, PCV system, and gas cap
check.
Evaporative system function checks............................................ Pressure decay test
1981+ vehicles.
Purge test 1981+
vehicles.
Stringency rate (pre-1981 vehicle failure).................................... 35%.
Waiver rate................................................................... 3%.
Compliance rate............................................................... 96%.
Evaluation date............................................................... July 1999.
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Virginia's modeling also includes credit for a mandatory emissions
repair technician training and certification (TTC) program in the
Northern Virginia program area.
In order to determine whether the proposed I/M program meets the
enhanced performance standard, the Commonwealth needed to model its
program to demonstrate that it had met the enhanced performance
standard. Because of delayed I/M program start up and program
reconfiguration, the existing modeling used by the state to demonstrate
compliance with the performance standard is no longer accurate, as it
is based on start up and phase-in of testing and cutpoints that do not
reflect the current program configuration or start dates that the state
will actually implement. Additionally, modeling must be performed to
demonstrate compliance with the performance standard for all affected
localities. Therefore, the Commonwealth must conduct new modeling to
verify that the performance standard will in fact be met. For example,
actual start dates corresponding to each test-type and cutpoints
correct program start up dates should be included in the new modeling.
EPA proposes that interim approval of Virginia's I/M SIP be
conditioned, in part, upon the requirement that the state conduct and
submit the necessary new modeling to demonstrate that the program will
meet the performance standard, by a fixed date within one year from
final interim approval. In order to facilitate conditional approval of
the Virginia SIP, Virginia must submit to EPA a commitment, within 30
days of publication of this notice, to perform this modeling within the
time frame set forth above. If the state fails to commit to perform
this re-modeling, EPA proposed in the alternative to disapprove the
SIP. If the state fails to perform and submit the new modeling by the
date committed to, EPA proposes that the interim approval will convert
to a disapproval upon a letter from EPA indicating that the state has
failed to meet the conditions of approval by failing to timely submit
the modeling and to demonstrate compliance with the performance
standard.
Network Type and Program Evaluation--40 CFR 51.353
The enhanced program shall include an ongoing evaluation to
quantify the emission reduction benefits of the program, and to
determine if the program is meeting the requirements of the Act and the
federal I/M rule. The SIP shall include details on the program
evaluation and shall include a schedule for submittal of biennial
evaluation reports, data from state monitored or administered mass-
based, transient emissions testing of at least 0.1% of the vehicles
subject to inspection each year, a description of the sampling
methodology, the data collection and analysis system, and the legal
authority enabling the evaluation program. Virginia's SIP provides for
a decentralized, test-and-repair network design, which will be operated
in multiple private inspection stations. Testing will be required on a
biennial basis.
In addition, the federal I/M rule requires the state to demonstrate
that the program meets the performance standard by fixed evaluation
dates. The first such date is January 1, 2000. However, few state
programs will be able to meet the performance standard by then, as a
result of delays in program start-up and the phased-in nature of
various testing requirements. EPA believes that based on the provisions
of the NHSDA, the evaluation dates in the current I/M rule have been
superseded. Congress provided in the NHSDA for state development of I/M
programs that would start significantly later than the start dates in
the current I/M rule. Consistent with Congress's intent exhibited in
the NHSDA with regard to program start-up, such programs by definition
will not achieve full compliance with the regulatory performance
standard by the beginning of the year 2000.
Therefore, EPA has concluded that the NHSDA superseded the start
date requirements of the I/M rule, but that states should still be
required to start their programs as soon as possible, which EPA has
determined would be by no later than November 15, 1997. EPA now
believes that pursuant to the NHSDA, the initial evaluation date should
be January 1, 2002. This evaluation date will allow states to fully
implement their I/M programs and to complete one cycle of testing at
full cutpoints in order to demonstrate compliance with the performance
standard.
The Commonwealth's SIP contains a commitment to perform an ongoing
program evaluation, consisting of administration or oversight of
inspections by Department of Environmental Quality (DEQ) personnel of
at least 0.1% of the annually subject vehicle population. EPA
interprets this broad commitment to indicate that Virginia staff will
merely oversee or conduct testing in actual test stations using state-
approved I/M test methods. This program evaluation does not comply with
the evaluation protocol set forth by EPA in 40 CFR 51.353(c).
The Environmental Council of States (ECOS) has formed a committee
to develop an evaluation protocol to be used by states in order to
evaluate overall program effectiveness. The ECOS group has agreed that
states must follow the long term program evaluation defined in 40 CFR
51.353. 40 CFR 51.353 requires that mass-emission based, transient
testing (METT) be performed on 0.1% of the subject fleet each year. The
submittal also fails to address other program evaluation elements
specified in 40 CFR 51.353(b)(1) and (c), including a program
evaluation schedule, a protocol for the evaluation testing, and a
system for collection and analysis of program evaluation data.
EPA, therefore, proposes to conditionally approve Virginia's SIP
based on receiving the Commonwealth's commitment within 30 days to
submit to EPA by a date certain within twelve months of the final
interim ruling, the final Virginia I/M regulation which requires METT
be performed on 0.1% of the subject fleet each year as per 40 CFR
51.353(c)(3) and meets the program evaluation elements as specified in
40 CFR 51.353(c). If this condition is not
[[Page 57348]]
met EPA will promptly issue a letter to the Commonwealth indicating
that the conditional approval has been converted to a disapproval.
Adequate Tools and Resources--40 CFR 51.354
The federal I/M rule requires the Commonwealth to demonstrate that
adequate funding of the program is available. A portion of the test fee
or separately assessed per vehicle fee shall be collected, placed in a
dedicated fund and used to finance the program. Alternative funding
approaches are acceptable if a state demonstrates that the level of
funding can be maintained. Reliance upon funding from a state or local
general fund is not acceptable, unless doing otherwise would be a
violation of the state's constitution. The SIP shall include a detailed
budget plan which describes the source of funds for personnel, program
administration, program enforcement, and purchase of equipment. The SIP
shall also detail the number of personnel dedicated to the quality
assurance program, data analysis, program administration, enforcement,
public education and assistance and other necessary functions.
Virginia DEQ's I/M oversight program will be funded through a per
vehicle I/M inspection fee, which is currently set at $20; along with a
separate administrative registration fee of $2 per vehicle. The
administrative fee will be deposited in a dedicated fund, to be used
solely for program oversight.
The SIP contains a detailed budget synopsis describing the
personnel dedicated to the quality assurance program, program
oversight, data collection and analysis, enforcement, public education,
and other necessary functions. Virginia's SIP indicates that this level
of personnel resources is adequate to properly oversee the program, and
that private contract personnel may be utilized, as needed, for special
program functions (e.g. temporary audit staff, on-road testing
contractors, etc).
The Virginia submittal meets the requirements for adequate tools
and resources, as set forth in the federal I/M regulations. Therefore,
this portion of Virginia's SIP is approvable.
Test Frequency and Convenience--40 CFR 51.355
The enhanced I/M performance standard assumes an annual testing
frequency; however, alternative schedules may be approved if the
performance standard is achieved. The SIP shall describe the test year
selection scheme, how the test frequency is integrated into the
enforcement process and shall include the legal authority, regulations
or contract provisions to implement and enforce the test frequency. The
program shall be designed to provide convenient service to the motorist
by ensuring short wait times, short driving distances and regular
testing hours.
Section 46.2-1177 of Virginia's Motor Vehicle Emissions Control Law
and Virginia's proposed I/M regulation provide the legal authority to
implement the program with a biennial testing frequency. Virginia's
proposed enhanced I/M regulation provides for a biennial testing, with
initial testing for new vehicles required two years after initial
registration. The Commonwealth has submitted modeling to demonstrate
this biennial program's equivalency to the performance standard.
However, this modeling analysis did not fully satisfy the requirements
of 40 CFR 51.351. Upon satisfaction of the re-modeling condition in
today's rulemaking action pertaining to the requirements of 40 CFR
51.351, Virginia will have satisfied the equivalency of their biennial
testing scheme to the annual scheme contained in the model program.
Virginia's SIP lacks a detailed description of how emissions
testing is scheduled for subject vehicles and the test selection scheme
for assigning testing under the biennial program. Additionally, the SIP
does not describe how the test frequency will be integrated with the
registration denial motorist enforcement process. These elements
constitute a minor deficiency in Virginia's SIP, which must be
corrected in the final I/M SIP revision submitted by the end of the 18-
month interim period. This portion of Virginia's SIP otherwise
satisfies the requirements of 40 CFR 51.355, and is therefore
approvable.
Vehicle Coverage--40 CFR 51.356
The performance standard for enhanced I/M programs assumes coverage
of all 1968 and later model year light duty vehicles and light duty
trucks up to 8,500 pounds GVWR, and includes vehicles operating on all
fuel types. Other levels of coverage may be approved if the necessary
emission reductions are achieved. Vehicles registered or required to be
registered within the I/M program area boundaries and fleets primarily
operated within the I/M program area boundaries and belonging to the
covered model years and vehicle classes comprise the subject vehicles.
Fleets may be officially inspected outside of the normal I/M program
test facilities, if such alternatives are approved by the program
administration, but shall be subject to the same test requirements
using the same quality control standards as non-fleet vehicles and
shall be inspected in the same type of test network as other vehicles
in the state, according to the requirements of 40 CFR 51.353(a).
Vehicles which are operated on federal installations located within an
I/M program area shall be tested, regardless of whether the vehicles
are registered in the state or local I/M area.
The I/M rule requires that the SIP shall include the legal
authority or rule necessary to implement and enforce the vehicle
coverage requirement, a detailed description of the number and types of
vehicles to be covered by the program and a plan for how those vehicles
are to be identified, including vehicles that are routinely operated in
the area but not registered in the area. Additionally, the SIP must
contain a description of any special testing exemptions, including the
percentage and number of vehicles to be impacted by the exemption. Such
exemptions shall be accounted for in the emissions reduction analysis.
The Northern Virginia enhanced I/M program requires coverage of all
1968 and newer, private or publicly owned, gasoline-powered vehicles up
to 10,000 pounds gross vehicle weight rating (GVWR) which are
registered or required to be registered in the I/M program area.
Additionally, affected motor vehicles which are primarily operated on
or commute to a state, local or federal government facility, are also
subject to testing. As of the date of the SIP submittal, Virginia
estimates that approximately 1.25 million vehicles will be subject to
enhanced testing in the program area.
Virginia's proposed regulation exempts the following vehicles:
motorcycles, diesel-fueled vehicles, electric-powered vehicles, clean-
fueled vehicles (as defined by Sec. 46.2-2 and 46.2-100 of the Code of
Virginia), and vehicles registered as antiques. Additionally, Virginia
SIP provides that testing may be deferred for vehicles (up to four
model years old) held for sale by licensed car dealers, for up to one
year from the date of sale. Section 46.2-1178 of the Virginia Motor
Vehicle Control Law authorizes testing for the vehicles covered by
Virginia's regulation, and Sec. 46.2-1180 of the Motor Vehicle Control
Law provides for the exemptions in the regulation, as listed above.
This level of vehicle coverage is approvable, provided the performance
standard can be demonstrated to have been met with this level of
exemptions.
Virginia's SIP requires fleet vehicles, both public and privately
owned, to be
[[Page 57349]]
tested. Virginia's regulation allows fleet owners having 20 or more
vehicles to self test, provided they are licensed to do so by the
Commonwealth. These fleet testing stations are subject to the same
testing procedures and the same quality control procedures as official
public testing stations. The fleet testing program is approvable, as it
meets the requirements of 40 CFR 51.356(a).
Virginia has not fully accounted for all of its testing exceptions,
as a percentage of the entire subject fleet, in the SIP. Any exceptions
to testing requirements must be accounted for in the emissions
reductions analysis. Virginia has committed to better account for the
number of excepted vehicles after the program commences operation.
Since the exceptions are not expected to comprise a significant portion
of the subject fleet, this is considered by EPA to be a minor
deficiency. The state must better estimate these exceptions and account
for them in their performance standard modeling demonstration prior to
the end of the 18-month interim approval period.
This portion of Virginia's SIP otherwise satisfies the requirements
of 40 CFR 51.356, and is approvable.
Test Procedures and Standards--40 CFR 51.357
Written test procedures and pass/fail standards shall be
established and followed for each model year and vehicle type included
in the program. Test procedures and standards are detailed in 40 CFR
51.357 and in the EPA documents entitled ``High-Tech I/M Test
Procedures, Emission Standards, Quality Control Requirements, and
Equipment Specifications'', EPA-AA-EPSD-IM-93-1, dated April 1994 and
``Acceleration Simulation Mode Test Procedures, Emission Standards,
Quality Control Requirements, and Equipment Specifications'', EPA-AA-
RSPD-IM-96-2, dated July 1996. The federal I/M rule also requires
vehicles that have been altered from their original certified
configuration (i.e. engine or fuel switching) to be subject to the
requirements of section 51.357(d).
For the Northern Virginia enhanced program, Virginia has proposed a
two-mode acceleration simulation mode (ASM2) exhaust test as its
primary test method for newer-technology (i.e. 1981 and newer) light-
duty vehicles. This test actually consists of two separate tests,
referred to as ASM 5015 and ASM 2525. Two-speed idle testing will be
performed on subject heavy-duty vehicles, older technology (i.e. pre-
1981) light-duty vehicles, and on vehicles with full-time four wheel
drive or full-time anti-lock brake systems. Additionally, evaporative
system testing consisting of pressure testing (for 1973 and newer
vehicles) and purge testing (for 1981 and newer vehicles receiving ASM
testing) are included in the SIP. Virginia's regulation also calls for
a visual inspection for the presence, on 1973 and newer vehicles, of
certain emissions control components or systems, including the: air
injection system, catalytic converter system, fuel evaporative
emissions control system, positive crankcase ventilation (PCV) system,
exhaust gas recirculation (EGR) system, and the thermostatic air
cleaner system. Finally, the SIP calls for a fuel filler cap check for
1973 and newer vehicles.
The Commonwealth's regulation requires vehicles that have been
altered from the original certified configuration to which they were
manufactured (i.e. vehicles in which the engine or fuel type has been
switched) to be tested to their originally certified design.
The Commonwealth's SIP does not contain detailed ASM2 test
procedures that are acceptable to EPA. The Commonwealth's regulation
incorporates by reference the appropriate section of the Code of
Federal Regulations (CFR) for I/M test procedures for 2-speed idle
testing and for evaporative pressure and purge testing. However, the
Virginia SIP allows for possible alternative evaporative system tests
to those referenced by the Commonwealth's regulation. No test
procedures are specified for any alternative evaporative system test,
with the exception of a fuel filler cap check procedure. In order for
the Commonwealth to include alternative evaporative tests in the
performance standard demonstration and to require testing with these
tests, the SIP must contain EPA approved test procedures for such
tests. The final SIP must include detailed, approvable test procedures
for all test methods to be utilized in the enhanced I/M program.
The SIP includes hydrocarbon (HC), carbon monoxide (CO), and oxide
of nitrogen (NOX) pass/fail standards (or ``cutpoints'') for the
ASM2 test for each subject model year and vehicle type. HC and CO
cutpoints are provided in Virginia's regulation for the 2-speed idle
test procedure for all subject model year and types of vehicles.
Standards will be phased-in over one biennial testing cycle, with final
standards to apply at that time. EPA must receive all test procedures,
specifications and standards before EPA can proceed with a final
interim rulemaking action. EPA recently (August, 1996) released ASM
test procedures, specifications and standards. In light of the
finalization of these standards, EPA expects the Commonwealth to submit
its ASM test procedures, specifications and standards in the near
future.
If within 30 days of the proposed interim rulemaking, the
Commonwealth submits to EPA a commitment to adopt approvable test
procedures for its two-mode ASM test, accompanied by a draft procedures
document or a revised proposed regulation referencing or containing
approved procedures, then EPA proposes to conditionally approve this
portion of the SIP. The Commonwealth's commitment must include a date
certain (prior to the date by which testing is to commence), within
twelve months of the final interim ruling, by which the final Virginia
I/M regulation or test procedure document will be formally submitted.
If within 30 days of the proposed interim ruling, the above submittal/
commitment requirement has not been met, then this notice proposes in
the alternative to disapprove the Virginia I/M SIP. If the condition to
submit the final regulation or test procedures document which
incorporates an approvable ASM2 test procedure is not met by the date
committed to by the Commonwealth from the final interim ruling, then
EPA will promptly issue a letter to the Commonwealth indicating that
the conditional approval has been converted to a disapproval.
Finally, Virginia's regulation must require that retests conducted
after the performance of repairs shall include the performance of all
emissions tests and for all pollutants for which the vehicle was
originally subject, not merely the test and pollutant for which the
vehicle initially failed. This is a minor deficiency, and must be
corrected prior to the end of the 18-month interim approval period.
Test Equipment--40 CFR 51.358
Computerized test systems are required for performing any emission
measurement on subject vehicles. The federal I/M rule requires that the
state SIP submittal include written technical specifications for all
test equipment used in the program. The specifications shall describe
the emission analysis process, the necessary test equipment, the
required features, and written acceptance testing criteria and
procedures.
The Commonwealth's submittal lacks written technical specifications
for all test equipment to be used in the program. The Commonwealth's
regulation incorporates by reference 40 CFR part 51, subpart S (i.e.,
the I/M program requirements rule) and 40 CFR
[[Page 57350]]
part 85, subpart W (i.e., emissions performance warranty short tests
rule). However, the regulation does not specifically include or
reference EPA approved I/M test equipment specifications. Neither, does
the SIP does not contain specifications to address performance features
and functional characteristics of the computerized test systems. The
Commonwealth's rule does, however, require the use of computerized test
systems.
Virginia must submit written test equipment specifications for the
ASM2 test equipment and 2-speed idle test equipment, as well as the
specifications for the necessary pressure and purge, and fuel filler
cap check equipment. In light of the recent release of ASM test
equipment specifications, in August 1996, EPA expects that the
Commonwealth will adopt final test specifications in the near term.
If within 30 days of the proposed interim rulemaking, the
Commonwealth submits to EPA a commitment to adopt approvable test
equipment specifications for all the I/M test procedures contained in
its regulation, accompanied by draft specifications documents or by a
revised proposed regulation referencing or containing approved test
equipment specifications, then EPA proposes to conditionally approve
this portion of the SIP. The Commonwealth's commitment must include a
date certain (prior to the date by which testing is to commence),
within twelve months of the final interim ruling, by which the final
Virginia I/M regulation or test equipment specifications documents will
be formally submitted. If within 30 days of the proposed interim
ruling, the above submittal/commitment requirement has not been met,
then this notice proposes in the alternative to disapprove the Virginia
I/M SIP. If the condition to submit the final regulation or test
procedure document which incorporates approvable test equipment
specifications is not met by the date certain within twelve months (by
which the Commonwealth commits to submit final test procedures) from
the final interim ruling, EPA will promptly issue a letter to the
Commonwealth indicating that the conditional approval has been
converted to a disapproval.
Quality Control--40 CFR 51.359
Quality control measures shall insure that emission measurement
equipment is calibrated and maintained properly, and that inspection,
calibration records, and control charts are accurately created,
recorded and maintained. The Virginia submittal lacks a description of
quality control measures for the emission measurement equipment, record
keeping requirements and measures to maintain the security of all
documents used to establish compliance with the inspection
requirements.
Virginia has committed in its SIP to develop and submit to EPA
quality control procedures to ensure that the Commonwealth provides its
motorists with accurate emissions test results. Some aspects of record
keeping and document security are addressed in Virginia's regulation.
However, the SIP presently does not satisfy quality control
requirements.
This is considered a minor deficiency, which must be corrected
prior to expiration of the 18-month interim approval period. Virginia
must develop quality control procedures, to be addressed within the
Commonwealth's I/M regulation, test equipment specifications, quality
control procedures manual, or other ordinance or documents to satisfy
all the quality control requirements of 40 CFR 51.359.
Waivers and Compliance Via Diagnostic Inspection--40 CFR 51.360
The federal I/M rule allows for the issuance of a waiver, which is
a form of compliance with the program requirements that allows a
motorist to comply without meeting the applicable test standards. For
enhanced I/M programs, an expenditure of at least $450 in repairs,
adjusted annually to reflect the change in the Consumer Price Index
(CPI) as compared to the CPI for 1989, is required in order to qualify
for a waiver. EPA recently amended the I/M rule to allow waivers to be
phased-in after commencement of testing, but no later than January 1,
1998 and to allow repairs conducted by recognized repair technicians up
to 60 days prior to testing to apply towards the waiver expenditures.
Waivers may only be issued after a vehicle has failed a retest
performed after all qualifying repairs have been made. Any available
warranty coverage must be used to obtain repairs before expenditures
can be counted toward the cost limit. Tampering related repairs shall
not be applied toward the cost limit. Repairs must be appropriate to
the cause of the test failure. Repairs for 1980 and newer model year
vehicles must be performed by a recognized repair technician. The
federal regulation provides states the option to allow for compliance
via a diagnostic inspection after failing a retest on emissions and
requires quality control of waiver issuance. The SIP must set a maximum
waiver rate and must describe corrective action that would be taken if
the waiver rate exceeds that committed to in the SIP.
Virginia's Motor Vehicle Emissions Control Law and the
Commonwealth's proposed I/M regulation provide the necessary authority
to issue waivers, set and adjust cost limits, administer and enforce
the waiver system, and to set a $450 waiver cost limit (adjusted
annually by the CPI, as compared to the CPI in 1989).
Virginia's regulation phases in the waiver limits, beginning with
the commencement of testing, over one biennial test cycle, to the
federal limit by July 1, 1998. EPA is approving this phase-in schedule,
because the commencement of I/M testing was delayed by the deadlines
set forth in the NHSDA. EPA contends that this is consistent with its
interpretation that start dates and evaluation dates may be extended by
approximately two years under authority of the NHSDA, and phasing in
the waiver over a similar time period is appropriate. Also, EPA's I/M
rule provides one cycle to phase in the waiver after the start of
testing, so it is acceptable for Virginia to phase in the waiver over
one cycle after the start date set forth by the NHSDA.
The Commonwealth's proposed regulation allows emission inspection
station inspectors to issue waivers. The I/M rule, 40 CFR 51.360(c)(1),
only allows the state or a single contractor to issue waivers. This is
a minor deficiency and must be corrected in the final I/M SIP revision
submitted by the end of the 18-month interim period.
The Commonwealth has set a 3% maximum waiver rate, as a percentage
of failed vehicles, for both pre-1981 and 1981 and later vehicles. The
Commonwealth has committed, per 40 CFR 51.360, to take corrective
action if the waiver rate exceeds 3%. This waiver rate was used in the
Commonwealth's existing performance standard modeling demonstration,
and should be maintained in the new performance standard modeling
demonstration.
Otherwise, the Commonwealth's SIP satisfies the waiver requirements
of 40 CFR 51.360, and is approvable.
Motorist Compliance Enforcement--40 CFR 51.361
The federal I/M rule requires that compliance be ensured through
the denial of motor vehicle registration in enhanced I/M programs,
unless an exception for use of an existing alternative is approved. The
SIP shall provide information concerning the enforcement process, legal
authority to implement and enforce the program, and a commitment to a
compliance rate
[[Page 57351]]
to be used for modeling purposes and to be maintained in practice.
Chapter 10, Sec. 46.2-1183 of the Motor Vehicle Emissions Control
Law provides the legal authority to implement registration denial
motorist enforcement. Virginia's I/M regulation requires that motorists
obtain an emissions certificate demonstrating that they have passed a
test or received a waiver in order to obtain a vehicle registration
from the Department of Motor Vehicles (DMV). The Virginia SIP commits
to maintain a compliance rate of 96%, which was used in the performance
standard modeling demonstration.
The motorist compliance enforcement program is to be implemented in
part by the DMV, which is the lead agency for registration issuance.
The Department of State Police and local police authorities are charged
with enforcement against motorists who fail to comply with registration
requirements.
The Virginia SIP does not address mechanisms by which motorists
will be notified of testing, readily visible means of determining
compliance with the I/M program, penalties for motorists failing to
comply with motor vehicle testing and registration, or mechanisms to
prevent vehicle owners from avoiding testing by manipulating
registrations. These, along with all other requirements of 40 CFR
51.361 must be addressed in the SIP. Virginia has committed in the SIP
to prepare a registration procedures manual to govern registration
aspects of this portion of the program. It is expected that some of
these requirements will be addressed in that procedures document.
The requirements listed above are relatively minor in nature. These
requirements must be satisfied prior to the end of the 18-month interim
approval period. Virginia's SIP otherwise satisfies the requirements of
40 CFR 51.361, and is approvable.
Motorist Compliance Enforcement Program Oversight--40 CFR 51.362
The federal I/M rule requires that the enforcement program shall be
audited regularly and shall follow effective program management
practices, including adjustments to improve operation when necessary.
The SIP must include quality control and quality assurance procedures
to be used to insure the effective overall performance of the
enforcement system. An information management system must be
established which will characterize, evaluate and enforce the program.
Virginia has not developed its procedures manual for its oversight
program to ensure motorist compliance. Virginia must submit a
procedures manual which satisfies the quality control and information
management responsibilities of the motorist compliance enforcement
oversight program section of the federal I/M rule, at 40 CFR 51.363.
For a complete list of specific deficiencies with respect to 40 CFR
51.362, refer to the technical support document (TSD) for this action,
found in the EPA docket. These deficiencies are minor in nature, and
must be addressed prior to the end of the 18-month interim approval
period.
Other than the deficiencies noted above, this portion of Virginia's
SIP satisfies the requirements of 40 CFR 51.362, and is approvable.
Quality Assurance--40 CFR 51.363
An ongoing quality assurance program shall be implemented to
discover, correct and prevent fraud, waste, and abuse in the program.
The program shall include covert and overt performance audits of the
inspectors, audits of station and inspector records, equipment audits,
and formal training of all state I/M enforcement officials and
auditors. A description of the quality assurance program which includes
written procedure manuals on the above discussed items must be
submitted as part of the SIP.
Virginia's SIP contains a detailed description of the elements of
the quality assurance program and an appendix describing quality
assurance and audit procedures. Virginia commits to conduct at least
one covert audit per year per inspection bay, and at least two overt
audits per year per inspection bay. However, the procedures manuals for
use by Commonwealth quality assurance auditors have not yet been
completed. These manuals must include detailed covert and overt audit
procedures to be used by the Commonwealth for program oversight
purposes. Virginia has committed to complete these audit manuals by
December 1, 1996.
This lack of detailed audit procedures manuals is a minor
deficiency, and therefore the Commonwealth must complete and submit
these manuals by the end of the 18-month interim approval period.
The Virginia SIP otherwise meets the quality assurance requirements
of section 40 CFR 51.363, and is approvable.
Enforcement Against Contractors, Stations and Inspectors--40 CFR 51.364
Enforcement against licensed stations, contractors and inspectors
shall include swift, sure, effective, and consistent penalties for
violation of program requirements. The federal I/M rule requires the
establishment of minimum penalties for violations of program rules and
procedures which can be imposed against stations, contractors and
inspectors. The legal authority for establishing and imposing
penalties, civil fines, license suspensions and revocations must be
included in the SIP. State quality assurance officials shall have the
authority to temporarily suspend station and/or inspector licenses
immediately upon finding a violation that directly affects emission
reduction benefits, unless constitutionally prohibited. An official
opinion explaining any state constitutional impediments to immediate
suspension authority must be included in the submittal. The SIP shall
describe the administrative and judicial procedures and
responsibilities relevant to the enforcement process, including which
agencies, courts and jurisdictions are involved, who will prosecute and
adjudicate cases and the resources and sources of those resources which
will support this function.
Virginia's regulations establish a general enforcement process,
including: issuance of notices of violation (NOVs), hearing processes,
and avenues of appeal. Virginia has several avenues for adjudicating
violation cases--including formal fact findings, formal DEQ hearings,
and the ability to suspend stations or inspectors without a hearing, in
certain instances. Virginia's regulation provides that penalties may be
imposed against station owner permittees or against stations, as well
as against inspectors.
In the cases where testing privileges are suspended, inspectors
must demonstrate their ability to properly perform test procedures
before testing privileges may be restored. Suspended inspectors are
barred from participating in inspection operations during the term of
the suspension.
Virginia's SIP includes provisions to maintain and submit to EPA
records of all enforcement actions, including: warnings, violations,
civil fines, suspensions, and license revocations, and violations. The
DEQ will maintain this information in a ``Violation History Report''
for each station and each inspector.
The Virginia SIP includes legal authority to establish and impose
penalties against stations and inspectors participating in the enhanced
I/M program. The Commonwealth has not yet adopted and submitted a
penalty schedule for inspectors and test stations in the SIP, however
the SIP contains a commitment to do so prior to program
[[Page 57352]]
start-up. The lack of a penalty schedule is a minor deficiency, and
Virginia must adopt and submit an acceptable penalty schedule prior to
the end of the 18-month interim approval period.
With the exception of the lack of a penalty schedule, this
submittal meets the enforcement requirements of this section of the I/M
rule.
Data Collection--40 CFR 51.365
Accurate data collection is essential to the management, evaluation
and enforcement of an I/M program. The federal I/M regulation requires
data to be gathered on each individual test conducted and on the
results of the quality control checks of test equipment required under
40 CFR 51.359.
Virginia's I/M regulation does not indicate specific data elements
to be entered by inspectors and reported to the Commonwealth. However,
the regulation does require the inspector to accurately identify and
enter vehicle and owner information for the specific test.
The Commonwealth does commit to submit annual reports containing
summaries of test data, quality assurance, and quality control
information based upon program test data. A commitment to submit
biennial reports to EPA which adequately address reporting requirements
set forth in 40 CFR 51.366(e) is also included in the SIP.
The submittal does not require that the specific data elements
identified in 40 CFR 51.365(a) be collected and reported to the
Commonwealth. This is a minor deficiency which must be corrected prior
to the end of the 18-month interim approval period. This requirement
can be satisfied by Virginia requiring these data elements to be
collected. Two avenues for this requirement are via the regulation, or
through the test equipment specifications (i.e. by requiring the test
equipment to prompt the inspector to enter these elements and by
blocking testing if the data is not entered).
With the exception of a requirement for collection of the specific
data elements, described above, the Virginia SIP meets the data
analysis and reporting requirements of this section of the I/M rule.
Data Analysis and Reporting--40 CFR 51.366
Data analysis and reporting are required to allow for monitoring
and evaluation of the program by the state and EPA. The federal I/M
rule requires annual reports to be submitted which provide information
and statistics and summarize activities performed for each of the
following programs: testing, quality assurance, quality control, and
enforcement. These reports are to be submitted by July and shall
provide statistics for the period of January to December of the
previous year. A biennial report shall be submitted to EPA which
addresses changes in program design, regulations, legal authority,
program procedures and any weaknesses in the program found during the
two year period and how these problems will be or were corrected.
Virginia's SIP commits to submit annual statistical data summaries
of activities related to testing, quality assurance, quality control,
and enforcement programs, beginning January 1, 1998, containing data
from the previous calendar year. Since Virginia's program is scheduled
to begin in the month of July, not January, this reporting schedule is
acceptable. Virginia's SIP contains an appendix (Appendix 12) which
describing program statistics specific data elements in these annual
reports. The data elements specified comply with the requirements of 40
CFR 51.366.
For a list of the specific data elements to be submitted in each of
the annual reports, refer to the TSD for this rulemaking action.
Inspector Training and Licensing or Certification--40 CFR 51.367
The federal I/M rule requires all inspectors to be formally trained
and licensed or certified to perform inspections.
Virginia's SIP contains regulatory authority requiring that program
inspectors complete DEQ-approved formal training courses and then pass
a qualification test, prior to becoming a licensed inspector. A
description of the written and hands-on tests that inspectors are
required to pass are described in Virginia's regulation and in Appendix
13 of the SIP. The SIP also addresses requirements for obtaining an
inspector's license and describes the licensing process. A list of
elements to be covered by Virginia's inspector training program is
included in Virginia's I/M rule, and is detailed in the TSD for this
action.
Virginia's regulation requires inspectors to be relicensed every
three years, and requires inspectors to undergo the same training and
hands-on testing required to initially obtain a license, in order to be
relicensed. EPA rules require relicensing every two years, however,
since Virginia's requirements are stricter than federal rules require,
EPA considers the Commonwealth's three-year license period to be
acceptable.
The Virginia SIP satisfies the inspector training and licensing
requirements of 40 CFR 51.367, and is approvable.
Public Information and Consumer Protection--40 CFR 51.368
The federal I/M rule requires the SIP to include public
information and consumer protection programs.
Virginia's plan to develop public information and consumer
protection plans is described in SIP, and elements to be included in
those plans are listed in a ``Public Information Plan'' contained in
Appendix 15 of the SIP. Virginia commits in the SIP to complete
development of the actual plan by January 1, 1997.
The Commonwealth intends to operate public referee stations, where
testing disputes can be resolved. Additionally, the Commonwealth
intends to operate consumer complaint hotline services to subject
motorists. Additionally, Virginia describes strategies to educate the
public on the I/M program in a public awareness plan contained in the
SIP. Finally, Virginia intends to make statistical information
available to the public regarding the repair performance effectiveness
of repair facilities within the program area, per 40 CFR 51.369. For
details regarding elements to be included in the ``Public Information
Plan'', refer to the TSD for this action or to the SIP narrative
document contained in the SIP.
The Virginia SIP submittal meets the public information and
consumer protection requirements of the I/M rule, however, Virginia
must finalize and formally submit its ``Public Information Plan''. This
is a minor deficiency, which must be corrected prior to the end of the
18-month interim approval period. Other than the deficiency cited
above, Virginia's SIP satisfies the requirements of 40 CFR 51.368, and
is approvable.
Improving Repair Effectiveness--40 CFR 51.369
Effective repairs are the key to achieving program goals. The
federal
I/M rule requires states to take steps to ensure that the capability
exists in the repair industry to repair vehicles. The SIP must include
a description of the technical assistance program to be implemented, a
description of the procedures and criteria to be used in meeting the
performance monitoring requirements required in the federal regulation,
and a description of the repair technician training resources available
in the community.
[[Page 57353]]
Virginia's SIP commits to track the effectiveness of repair
facilities in the conducting emissions repairs under the enhanced I/M
program. The SIP also contains a commitment to provide to the affected
public the minimum performance monitoring information required by 40
CFR 51.369. A completed repair form, will be required prior to
motorist's receipt of a retest. However, the SIP does not contain a
detailed plan for performance monitoring, per 40 CFR 51.369(b).
Virginia has established in its SIP that insufficient emissions
repair training exists and commits to work with vocational schools to
provide for availability of better training. Virginia also commits in
its SIP to establish or operate a repair technician hotline to assist
repair technicians and to provide technical repair information for
emissions-related repairs. A description of repair training available
in the community must be submitted.
The Virginia SIP meets the requirements for improving repair
effectiveness, with the exception of a repair performance monitoring
program, per 40 CFR 51.369(b) and a description of available training,
per 40 CFR 51.369(c). However, this is a minor deficiency and must be
corrected prior to the end of the 18-month interim approval period in
order for EPA to fully approve the I/M SIP revision.
Other than the minor deficiencies cited above, this requirement
satisfies the requirements of 40 CFR 51.369, and is approvable.
Compliance With Recall Notices--40 CFR 51.370
The federal I/M rule requires states to establish methods to ensure
that vehicles that are subject to enhanced
I/M and are included in an emission related recall receive any recall
related repairs prior to receiving an emission test and renewing
vehicle registration.
Virginia's I/M regulation requires that motor vehicles show proof
of compliance with emissions-related recalls prior to receiving an
emissions inspection under the enhanced I/M program. Per EPA's I/M
rule, Virginia must maintain a database of outstanding emissions-
related recalls for vehicles registered in the I/M program area.
Motorists having vehicles which are subject to an outstanding recall
must show proof of compliance with the recall in order to obtain an
emissions test.
Virginia has not yet completed its recalls compliance procedures,
since EPA has not completed its guidance on emissions recall
compliance. The Commonwealth has committed in its SIP to complete its
recall procedures within six months of EPA's completion of recall
guidance. These procedures must address a process for notifying
motorists of outstanding recalls, a means of identifying vehicles
having an unresolved recall at I/M testing stations, quality control
methods to ensure recall compliance, and a database system to identify
and track vehicles subject to outstanding recalls. Additionally,
Virginia must prepare and submit annual reports with statistical
information regarding compliance with emissions recalls in the enhanced
I/M program area.
Virginia lacks only detailed recall compliance procedures and a
commitment to annually report recall compliance information to EPA,
therefore, this is a minor deficiency. However, Virginia must correct
this deficiency prior to the end of the 18-month interim approval
period. Otherwise, Virginia's SIP satisfies the requirements of 40 CFR
51.370.
On-Road Testing--40 CFR 51.371
On-road testing is required in enhanced I/M areas. The use of
either remote sensing devices (RSD) or roadside pullovers including
tailpipe emission testing can be used to meet the federal regulations.
The program must include on-road testing of 0.5% of the subject fleet
or 20,000 vehicles, whichever is less, in the enhanced I/M program
area. Motorists that have passed an emission test and are found to be
high emitters as a result of an on-road test shall be required to pass
an out-of-cycle test.
Section 46.2-1178.1 of the Virginia Motor Vehicle Emissions Control
Law provides Virginia legal authority to conduct on-road testing and to
assess civil penalties against motorists whose vehicles emit over
regulatory standards set by the Commonwealth for on-road testing,
unless the vehicle passes or is waived under an out-of-cycle emissions
test.
Virginia's I/M regulation sets forth a description of the on-road
testing program and the emissions standards cars must meet to pass this
testing. On-road testing in Virginia's program will be conducted via
either remote sensing equipment, or by roadside pullover and a two-
speed idle test. Vehicles must comply with standards set by Virginia
for relevant pollutants, including CO for remote sensing tests, and HC
and CO for two-speed idle tests. Virginia will engage a contractor, as
needed, to conduct roadside testing to satisfy the requirements of 40
CFR 51.371.
Under Virginia's proposed program, vehicles which fail on-road
testing standards may be retested (outside of the normal biennial
cycle) and repaired, or waived, to avoid civil penalties. Motorists'
vehicles that receive a waiver from regularly scheduled I/M testing are
exempt from civil penalties related to on-road testing. Motorists
having vehicles that fail an on-road test, who either do not obtain a
follow-up test, or whose vehicles fail the test and are not repaired to
pass an emissions test are subject to the penalties set forth in
Virginia's regulation.
The Commonwealth's SIP submittal does not, however, contain
sufficient information regarding on-road testing resource allocations,
including information on staffing requirements for both the
Commonwealth and the private testing vendor. Additionally, the SIP
lacks methods for analyzing and reporting the results of on-road
testing. These are, however, minor deficiencies and must be corrected
in the final I/M SIP revision submitted by the end of the 18-month
interim period, either by submitting an on-road testing procedures
manual or the request for proposals (RFP) for the contractor hired to
operate the on-road testing program.
Otherwise, this submittal satisfies the requirements of 40 CFR
51.371, and is approvable.
State Implementation Plan Submissions/Implementation Deadlines--40 CFR
51.372-51.373
The federal I/M rule requires states to provide in their I/M SIP a
schedule for implementation of the enhanced I/M program described in
the SIP, including interim milestone dates leading to mandatory
testing. A list of milestones which must be included, at a minimum, is
contained in 40 CFR 51.372. Additionally, 40 CFR 51.373 sets deadlines
by which I/M programs must be adopted and put in place. However,
language in the recently enacted National Highway Systems Designation
Act, granted states additional time to adopt and submit I/M SIPs to
satisfy the requirements of the Clean Air Act. States were to submit
SIPs, including proposed regulations if necessary, to EPA by March 27,
1996, and were granted eighteen months from the date of EPA interim
approval to establish the effectiveness of the program. The NHSDA
deadlines supersede any program implementation deadlines contained in
40 CFR 51.373.
Virginia's SIP contains a list of milestones and associated dates.
Under this schedule, testing to include all aspects of the new enhanced
I/M program, using phase-in test standards and a phased in waiver
limit, is to commence on July 1, 1997. Final test
[[Page 57354]]
procedures and test equipment specifications are to be adopted by
October 1, 1996. All official testing inspectors and stations are to be
licensed by June 1, 1997. Virginia's waiver cost limit will be fully
phased in over one biennial test cycle, to be at the full federal limit
by July 1, 1998. Final testing standards, or cutpoints, will replace
the phase-in standards at the beginning of the second biennial test
cycle, July 1, 1999.
Virginia has not listed dates by which all outstanding procedures
documents are to be finalized and submitted to EPA. Virginia has made
commitments to complete many of these procedures throughout the SIP.
Milestones and dates for completion of any outstanding procedures
documents should be listed in this portion of the SIP. This is however,
a minor deficiency, which the Commonwealth must complete prior to the
end of the 18-month interim approval period.
Otherwise, Virginia's SIP satisfies the requirements of 40 CFR
51.372 and 51.373, and is therefore approvable.
III. Discussion for Rulemaking Action
Today's notice of proposed rulemaking begins a 30 day clock for the
state to make a commitment to EPA to correct the major elements of the
SIP that EPA considers deficient. These elements include the: enhanced
I/M performance standard modeling demonstration, program evaluation
methodology, I/M test procedures, and I/M test equipment
specifications. If the Commonwealth does not make such commitments
within 30 days, EPA today is proposing in the alternative that this SIP
revision be disapproved.
Within 30 days, the Commonwealth must make a commitment to EPA to
correct these deficiencies by a date certain within 1 year of the
interim approval date, or in certain cases a date certain prior to the
commencement of testing.
If the Commonwealth makes the commitment within 30 days, EPA's
conditional approval of the plan will last until the date by which the
state has committed to cure all of the deficiencies. EPA expects that
within this period Virginia will not only correct the deficiencies as
committed to by the Commonwealth, but that Virginia will also begin
program start-up within 12 months of the final interim rulemaking. If
the state does not correct deficiencies and implement the interim
program by November 15, 1997, EPA is proposing in this notice that the
interim approval will convert to a disapproval after a finding letter
is sent to the state.
IV. Explanation of the Interim Approval
At the end of the 18-month interim period, the approval status for
this program will automatically lapse pursuant to the NHSDA. It is
expected that the Commonwealth will at that time be able to make a
demonstration of the program's effectiveness using an appropriate
evaluation criteria. As EPA expects that these programs will have
started on or before November 15, 1997, the Commonwealth will have at
least six months of program data that can be used for the
demonstration. If the Commonwealth fails to provide a demonstration of
the program's effectiveness to EPA within eighteen months of the final
interim rulemaking, the interim approval will lapse, and EPA will be
forced to disapprove the state's permanent I/M SIP revision. If the
Commonwealth's program evaluation demonstrates a lesser amount of
emission reductions actually realized than were claimed in the state's
previous submittal, EPA will adjust the Commonwealth's credits
accordingly, and use this information to act on the state's permanent
I/M program.
V. Further Requirements for Permanent I/M SIP Approval
At the end of the 18-month period, final approval of the
Commonwealth's plan will be granted based upon the following criteria:
1. Virginia has complied with all the conditions of its commitment
to EPA,
2. EPA's review of the Commonwealth's program evaluation confirms
that the appropriate amount of program credit was claimed by the state
and achieved with the interim program,
3. Final program regulations are submitted to EPA, and
4. The Virginia I/M program meets all of the requirements of EPA's
I/M rule, including those deficiencies found minor, or de minimis, for
purposes of interim approval.
VI. EPA's Evaluation of the Interim Submittal
EPA's review of the Commonwealth's SIP indicates that with
satisfaction of the conditions described above, the Commonwealth will
have adopted an enhanced I/M program in accordance with the
requirements of the NHSDA. EPA is proposing conditional, interim
approval of the Virginia SIP revision for an enhanced I/M program,
which was submitted on March 27, 1996. EPA is soliciting public
comments on the issues discussed in this notice or on other relevant
matters. These comments will be considered before taking final interim
action. Interested parties may participate in the federal rulemaking
procedure by submitting written comments to the EPA Regional office
listed in the Addresses section of this document.
Proposed Action
EPA is proposing conditional interim approval of this revision to
the Virginia SIP for an enhanced I/M program if a commitment is
received from the Commonwealth within 30 days of the date of this
proposal, to correct the identified deficiencies by a date certain
within one year from the date of the final interim approval action.
The conditions for approvability are as follows:
(1) Virginia must formally submit, by a date certain within one
year from interim conditional approval, new modeling to demonstrate
that the program will meet the enhanced I/M performance standard by the
first program evaluation date, for all localities which are part of the
enhanced I/M program. The Commonwealth's revised modeling must
correspond to the actual I/M program configuration, including actual
test methods and start dates for all I/M program tests, actual
cutpoints to be in-place for the evaluation year, and all other program
assumptions as they exist in the SIP.
(2) The Commonwealth must submit to EPA as a SIP amendment by a
date certain within twelve months of the final interim ruling, the
final Virginia I/M regulation which requires that mass-based emission,
transient cycle testing be performed on 0.1% of the subject fleet each
year, per 40 CFR 51.353(c)(3). This program evaluation scheme must
satisfy the program evaluation elements specified in 40 CFR 51.353(c),
including a program evaluation schedule, a protocol for the testing,
and a system for collection and analysis of program evaluation data;
(3) The Commonwealth must submit to EPA a commitment (along with a
draft procedures document or revised draft regulation containing these
procedures) to adopt approvable test procedures for its two-mode ASM
test, within 30 days. Then by a date certain within one year and prior
to the start of enhanced testing, the Commonwealth must submit the
final Virginia I/M regulation or test procedures document which
satisfies this requirement. If any alternative evaporative system test
procedures are to be utilized, testing procedures for those tests must
also be formally submitted at that time;
(4) The Commonwealth must submit to EPA, within 30 days, a
commitment
[[Page 57355]]
(along with a draft test equipment specifications or revised draft
regulation containing draft test equipment specifications) to adopt
final test equipment specifications. Then by a date certain within one
year and prior to the start of enhanced testing, the Commonwealth must
submit the final test equipment specifications for all test equipment
to be used in the program. This includes specifications for equipment
to perform the following tests: ASM2, two-speed idle, evaporative
system pressure testing, and evaporative system purge testing. These
specifications must be EPA-approved and satisfy the requirements of 40
CFR 51.358.
If the Commonwealth fails to satisfy the above conditions by a date
certain within one year, EPA proposes that the conditional interim
approval will convert to a disapproval upon a letter from EPA
indicating that the Commonwealth has failed to meet its conditions for
interim approval.
The following minor deficiencies must be corrected in the final I/M
SIP revision submitted by the end of the 18 month interim period:
(1) The SIP lacks a detailed description of the elements to satisfy
the test frequency requirements required under 40 CFR 51.355(a),
particularly regarding scheduling of vehicles for testing and the
selection scheme for the biennial program inspections, as well as a
description of how test frequency will be integrated with the
registration denial motorist enforcement process;
(2) The SIP does not fully account for all exceptions from testing
in the emissions reductions analysis. The state must account for
testing exceptions and account for them in their performance standard
modeling demonstration, per 40 CFR 51.356(b)(2);
(3) Virginia must develop quality control procedures, test
equipment specifications, quality control procedures manual, or other
ordinance or documents to satisfy all the quality control requirements
of 40 CFR 51.359;
(4) Virginia must amend its regulation to allow that waivers be
issued only by a single contractor or by the Commonwealth, per 40 CFR
51.360(c)(1);
(5) The final SIP submittal must include the procedures document
that adequately addresses the means by which the Commonwealth will
comply with all the motorist compliance enforcement program oversight
requirements set forth at 40 CFR 51.362;
(6) Virginia must complete and submit as a SIP revision to EPA
procedures manuals for use by the Commonwealth's quality assurance
auditors to conduct covert and overt audits for program oversight
purposes, per 40 CFR 51.363(e);
(7) The Commonwealth must adopt, and submit as a SIP revision, a
penalty schedule for inspectors and inspection stations, per 40 CFR
51.364(a) and (d);
(8) Virginia's SIP, either the regulation or the test equipment
specifications, must require that the specific data elements identified
in 40 CFR 51.365(a) be collected and reported to the Commonwealth on a
real-time basis;
(9) Virginia must finalize and submit the final ``Public
Information Plan'' described in the SIP, to satisfy the requirements of
40 CFR 51.368(a) and (b);
(10) Virginia must formally submit the procedures and criteria to
be used in meeting the repair performance monitoring requirements set
forth in 40 CFR 51.369(b) and a description of the repair technician
training resources available in the community (when available), per 40
CFR 51.369(c);
(11) Virginia must submit detailed recall compliance procedures and
a commitment to annually report recall compliance information to EPA,
per the requirements of 40 CFR 51.370;
(12) Virginia must amend the SIP to include information regarding
resource allocation for the on-road testing program, as well as methods
for analyzing and reporting the results of on-road testing, per 40 CFR
51.371. This may entail submittal of an on-road testing procedures
manual or the request for proposals (RFP) for the contractor to be
hired to operate the on-road testing program;
(13) Virginia must list in its schedule of implementation
milestones deadlines by which all procedures documents not yet part of
the SIP are to be finalized and submitted to EPA.
Nothing in this action should be construed as permitting or
allowing or establishing a precedent for any future request for
revision to any state implementation plan. Each request for revision to
the state implementation plan shall be considered separately in light
of specific technical, economic, and environmental factors and in
relation to relevant statutory and regulatory requirements.
Under the Regulatory Flexibility Act, 5 U.S.C. 600 et seq., EPA
must prepare a regulatory flexibility analysis assessing the impact of
any proposed or final rule on small entities. 5 U.S.C. 603 and 604.
Alternatively, EPA may certify that the rule will not have a
significant impact on a substantial number of small entities. Small
entities include small businesses, small not-for-profit enterprises,
and government entities with jurisdiction over populations of less than
50,000.
SIP approvals under section 110 and subchapter I, part D of the
Clean Air Act do not create any new requirements but simply approve
requirements that the state is already imposing. Therefore, because the
federal SIP approval does not impose any new requirements, the
Administrator certifies that it does not have a significant impact on
any small entities affected. Moreover, due to the nature of the
federal-state relationship under the CAA, preparation of a flexibility
analysis would constitute federal inquiry into the economic
reasonableness of state action. The Clean Air Act forbids EPA to base
its actions concerning SIPs on such grounds. Union Electric Co. v. U.S.
EPA, 427 U.S. 246, 255-66 (1976); 42 U.S.C. 7410(a)(2).
Under section 202 of the Unfunded Mandates Reform Act of 1995
(``Unfunded Mandates Act''), signed into law on March 22, 1995, EPA
must prepare a budgetary impact statement to accompany any proposed or
final rule that includes a federal mandate that may result in estimated
costs to state, local, or tribal governments in the aggregate, or to
the private sector, of $100 million or more. Under section 205, EPA
must select the most cost-effective and least burdensome alternative
that achieves the objectives of the rule and is consistent with
statutory requirements. Section 203 requires EPA to establish a plan
for informing and advising any small governments that may be
significantly or uniquely impacted by the rule.
EPA has determined that the approval action proposed/promulgated
does not include a federal mandate that may result in estimated costs
of $100 million or more to either state, local, or tribal governments
in the aggregate, or to the private sector. This federal action
approves pre-existing requirements under state or local law, and
imposes no new federal requirements. Accordingly, no additional costs
to state, local, or tribal governments, or to the private sector,
result from this action.
This action has been classified as a Table 3 action for signature
by the Regional Administrator under the procedures published in the
Federal Register on January 19, 1989 (54 FR 2214-2225), as revised by a
July 10, 1995 memorandum from Mary Nichols, Assistant Administrator for
Air and Radiation. The Office of Management and Budget (OMB) has
exempted this regulatory action from E.O. 12866 review.
The Administrator's decision to approve or disapprove the Virginia
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enhanced I/M SIP revision will be based on whether it meets the
requirements of section 110(a) (2)(A)-(K) and part D of the Clean Air
Act, as amended, and EPA regulations in 40 CFR part 51.
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Carbon monoxide,
Hydrocarbons, Incorporation by reference, Intergovernmental relations,
Nitrogen dioxide, Ozone, Reporting and recordkeeping requirements.
Authority: 42 U.S.C. 7401-7671q.
Dated: October 24, 1996.
Stanley L. Laskowski,
Acting Regional Administrator, Region III.
[FR Doc. 96-28543 Filed 11-5-96; 8:45 am]
BILLING CODE 6560-50-P
